Bradley v. School Board of the City of Richmond Petition for Rehearing En Banc

    UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT 
NOS. 15,178 to 15, 182

CAROLYN BRADLEY, et al.,
Plaintiffs-Appellants- Appellees

vs.
THE SCHOOL BOARD OF THE CITY 

OF RICHMOND, et al.,
Defendants-Appellees- Appellants

PETITION FOR REHEARING EN BANC

Plaintiffs-appellants in No. 15,178 Carolyn Bradley, et 
al., by their undersigned counsel, respectfully pray that this 
Court grant rehearing en banc of its November 6, 1970 order on 
defendant-appellee's Motion For Enlargement of Time to File
Briefs.

I
To seek rehearing of a decision on a procedural motion is 

extraordinary. But this Court's granting of the Richmond School 
Board's motion to delay this appeal, and its order establishing



a briefing schedule which postpones that normally required by 
the Federal Rules of Appellate Procedure instead of expediting 
these appeals, are themselves extraordinary. They compel plain­
tiffs to seek reconsideration.

II
This Court has in the past been a consistent leader in the 

stringent application of Alexander v. Holmes County Board of 
Education, 396 U.S. 19 (1969) and Carter v. West Feliciana Parish 
School Board, 396 U.S. 290 (1970). E .q., Nesbit v. Statesville 
City Board of Education, 418 F.2d 1040 (4th Cir. 1969); Stanley 
v. Darlington County Board of Education, 424 F.2d 195 (4th Cir.), 
cert, denied, 397 U.S. 1066, 398 U.S. 909 (1970); United States 
v. Franklin City Board of Education, 428 F.2d 373 (4th Cir. 1970).

In this very case, the Chief Judge denied a stay of the 
very plan from implementation of which the Richmond School Board 
appeals. Bradley v. School Board of Richmond. Misc. No. 689 
(4th Cir., August 28, 1970) (unreported order of Haynsworth,
C.J.). It is all the more anomalous, then, for this Court to 
now establish a schedule which absolutely negates the possibility 
of any relief to vindicate plaintiffs' constitutional rights 
during the 1970-71 school year, despite the fact that Notice 
of Appeal was filed August 19, 1970.

The first period of delay in this appeal followed the 
filing of Notice of Appeal by five parties to the lawsuit.

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Although plaintiffs filed their appeal first on August 18,
1970, and tendered the docketing fee, the appeal was not 
docketed until October 19, 1970 because of the practice of 
the Clerk's Office to await payment of all docketing fees in 
cases of multiple appeals from a single judgment before docket­
ing any appeal.

The briefing schedule established in this Court's November 
6 order makes submission of this case and calendaring for 
argument impossible until at least 70 days after a Supreme 
Court decision whose announcement is completely uncertain.
Even were the Swann and Mobile cases decided tomorrow, the 
leisurely pace set by this Court's order would virtually insure 
that no decision could be handed down until well after the 
second semester of the current school year had commenced.

Plaintiffs' contention on this appeal is that the court 
below failed to adopt the complete desegregation plan in the 
record which it expressly found to meet the "feasibility" 
standards of Green v. County School Board of New Kent County, 
391 U.S. 430 (1968) and the "reasonableness" test of this 
Court's decision in Swann v. Charlotte-Mecklenburg Board of 
Education, No. 14,517 (4th Cir., May 26, 1970), cert, granted, 
399 U.S. 926 (1970).

In that context, Alexander requires that such a plan be 
implemented pendente lite. Yet this Court's briefing schedule

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makes very unlikely even the ultimate implementation of con­
stitutional rights until 1971-72.

Ill
The notion that there is no constitutional defect in post­

poning further decision-making in school desegregation cases 
until the Supreme Court rules in Swann and Mobile is clearly 
in error.

In the first place, it is directly contradictory to 
Alexander, supra, and Carter, surpa. This is especially so 
because resumption of the judicial process in this case has 
been made dependent upon a contingency, the date of a completely 
uncertain event.

The Supreme Court's decision may come tomorrow or it may 
not be handed down until the end of the current term, or at 
any other point along that continuum. But there is another 
possibility even more depreciative of plaintiffs' rights to 
an adjudication of their claims —  the Supreme Court may hold 
the cases over to another Term for reargument. Compare Brown 
v. Board of Education, prob. juris. noted. 344 U.S. 1 (1952), 
set down for reargument, 345 U.S. 972 (1953), set down for 
further argument, 347 U.S. 483 (1954), see 349 U.S. 294 (1955).

Plaintiffs brought this case in the United States District 
Court for the Eastern District of Virginia, 28 U.S.C. § 1343. 
From the decision of that Court, they perfected an appeal to

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this Court, 28 U.S.C. § 1291. This matter is properly before 
this Court, not the Supreme Court. Plaintiffs are entitled 
to an adjudication of their claims by this Court without 
reference to Supreme Court action in another case, the pre­
diction of which is at best hypothetical as to both the 
timing of the decision and its content.

This is particularly true because both Swann and Mobile 
can be disposed of by the Supreme Court on grounds which will 
not advance the decision of this case.

In Swann v. Charlotte-Mecklenburg Board of Education,
No. 281, O.T. 1970, the Court may determine that the case is 
an inappropriate one to measure the "reasonableness" test 
laid down by this Court since on remand, the district court 
found its original order to meet that test. Accordingly, the 
Court may affirm both this Court and the district court on 
the ground that under the particular facts, the district court 
did not abuse its discretion by going too far in devising a 
remedy. See Brief in Nos. 281, and 349, passim.

In Davis v. Board of School Commissioners of Mobile County. 
No. 436, O.T. 1970, the Court may reverse because of the dis­
trict court's failure to afford petitioners an evidentiary 
hearing. See Brief for Petitoners in No. 436, pp. 80-84.

We submit that these holdings, or others similar thereto, 
would not materially aid this Court in disposing of this case.

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IV
Plaintiffs-appellants can understand and sympathize 

with this Court's desire to have a statement of the applic­
able law from the Supreme Court that clearly establishes 
simple rules for decision in other cases. If past history 
is any guide, however, the hope for such a talismanic opinion 
is illusory. What the Courts may believe to be clear state­
ments are often regarded as highly ambiguous by the parties.
E .g., Northcross v. Board of Education of Memphis, 396 U.S.
232, 236-37 (1970) (Mr. Chief Justice Burger, concurring); 
cf. Swann v. Charlotte-Mecklenburg Board of Education, No. 
14,517 (4th Cir., May 26, 1970) (Sobeloff, J., dissenting).

But there is another problem, and one which goes to the 
heart of our judicial system. Our courts and our Constitution 
are founded upon the notion that constitutional rights will 
be protected and claims adjudicated by an independent judiciary 
which decides cases on the evidence and arguments before it 
according to its best understanding of the law. See, e .g.,
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866). In those 
unusual circumstances in which a lower court is unable to 
render a determination, special procedures are provided. 28 
U.S.C. § 1254(3), 1292(b).

The determination by a court to withhold decision and 
postpone adjudication amounts to denial of the substantive 
rights sought to be enforced. It is an abdication of function

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which denies and despoils our judicial system.
The logic of this Court's November 6, 1970 order would 

seem to apply to other substantive areas. Shall lower courts 
abstain from any proceedings in habeas corpus or other 
actions brought by men under sentence of death until the 
Supreme Court passes upon all the challenges to capital 
punishment? Shall all the district courts in this Circuit 
suspend further proceedings in school desegregation cases 
until this Court's decision herein after the Supreme Court 
rules in Swann and Mobile?

The Supreme Court itself has declined to stay proceedings 
in school desegregation cases, or implementation of plans in 
such cases, pending decision in Swann and Mobile. E .g., 
Winston-Salem - Forsyth County Board of Education v. Scott; 
Board of Public Instruction of Broward County v. Allen; Dade 
County School Board v. Pate (unreported orders of August 25, 
1970); Board of Public Instruction of Duval County v. Braxton 
(unreported order of Mr. Justice Black, September 8, 1970).

The district court in this case found that the plan pro­
posed by plaintiffs' expert witness could be implemented for 
1970-71 but he declined to order it implemented. Plaintiffs- 
appellants attack that decision, but this Court's procedural 
order effectively denies them any opportunity to establish 
that substantive right for 1970-71.

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We urge the Court to reconsider, and to expedite these
appeals.

Respectfully submitted,
, f /

JACK GREENBERG /
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle New York, New York 10019

O ' ,

LOUIS R. LUCAS
525 Commerce Title Bldg. 
Memphis, Tennessee 38103

JAMES R. OLPHIN
214 East Clay Street 
Richmond, Virginia 23219

M. RALPH PAGE420 North 1st Street 
Richmond, Virginia 23219

Attorneys for Plaintiffs-Appellants- Appellees

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CERTIFICATE OF SERVICE

I hereby certify that on this 10th day of November 
1970, I served a copy of the foregoing Petition for Rehear­
ing En Banc upon counsel for all parties herein by United 
States mail, air mail postage prepaid, as follows:

Conard B. Mattox, Jr.
City Attorney 
420 City Hall 
Richmond, Virginia 23219
George B. Little 
1510 Ross Building 
Richmond, Virginia 23219
Walter E. Rogers
Frederick T. Gray
510 United Virginia Bank Bldg.
Richmond, Vriginia 23219
John S. Battle, Jr.
1400 Ross Building Richmond, Virginia 23219
E. G. Allen, Jr.
2nd floor, Massey Building 
Fourth and Main Streets 
Richmond, Virginia 23219

Attorney for Plaintiffs-Appellants- Appellees '